SUBJECT: ………………………LEGAL HISTORY…………………………………….

TOPIC : ……………WRITS JURISDICTION IN INDIA ………………………….

SUBMITTED TO:

Asst. Prof. ………Madhuri Modi…………….

SUBMITTED BY:

………………Lokesh Gupta…………………

COURSE / SEMESTER = BALLB 4 (SEMESTER)

SESSION: …2020-2021……………..

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 Index

 Abstract
 Introduction: Writ Jurisdiction in India
 Growth of Writ Jurisdiction in India: Origin and Development
 Historical Development in India
 Writs Provisions under Different Statutes
 Types of Writs
 Habeas Corpus
 Mandamus
 Certiorari
 Writ of Prohibition
 Writ of Quo Warranto

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 WRITS JURISDICTION IN INDIA

Abstract-
Social and Monetary Equity are the mark tune of the Indian Constitution. It ensures, central
rights which can't be usually criticized from, in securing these rights, the Constitution has
accommodated writ cures enforceable by the High Court and the Incomparable Court. A
significant component of these cures is the honor of remuneration as a component of the help
that can be allowed to the influenced individual. This emerges from the way that not exclusively
does the state have a lawful obligation in ensuring the rights ensured, yet additionally a social
obligation to repay the influenced, when the state abuses of these rights. On the opposite side,
There has been a huge extension in the managerial procedure. This is normal in a government-
assistance state as a government-assistance state is essentially a managerial state. So my research
paper manages the Idea of Writs, Its Experience, and Its Job In Managerial Activity.

Introduction

Article 32 and 226 of the constitution of India has intended for the requirement of major rights
and for a legal survey of authoritative activities, as writs. It is an established cure accessible to an
individual to bring his grumbling or complaint against any authoritative activity to the
notification of the court. The significance of cures for the most part is reflected in the saying ubi
jus ibi remedium-where there is a right, there is a cure. It is aphoristic that a legitimate right is of
little, assuming any, utilization except if joined by a successful cure. Cures ought to be
compelling as far as both method and impact, i.e the system for acquiring the cure ought to be
clear, basic and quick and the cure once conceded ought to be reasonable to shield the legitimate
right from encroachment and to remunerate the casualty for such encroachment.1

1 David Stott & Alexandra Felix, “Principles of Administrative Law”, Cavendish Publishing Limited, London &
Sydney, (1997) 155.

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Growth of Writ Jurisdiction in India: Origin and Development

The origin of writs took place in the English Judicial system, with the development of
English law from folk courts-moots to the formal courts of common law. The law of writs
originated from orders passed by the King’s Bench in England. Writ was precisely a royal order,
which was issued under the Royal seal. It used to be issued on a petition presented to the king in
council for exercise of the extraordinary judicial powers in a particular matter. In the Earlier
stage, the King’s court consisted of barons and high ecclesiastical with legislative, judicial and
administrative functions. However, with various phases of history it took different names and
forms but the spirit of this extraordinary remained almost the same.2

Historical Development in India

Legal audit of authoritative activity is a result of English Customary Law. The writ
method has been utilized in Britain since the thirteenth century for purposes to some degree like
the closures it is utilized for now. On the off chance that a subject whined of shamefulness, the
sovereign, the wellspring of equity, wishing to be educated regarding it, requested that the record
is transmitted to the Ruler' Seat. In the Seventeenth century, it turned into methods for audit of
the recently obtained exercises of the equity of harmony. Over some stretch of time, this force
was reached out to the audit of every regulatory body. The starting point of writs in India returns
to the Directing Demonstration, 1773 under which an Incomparable Court was built up at
Calcutta by a contract in 1774. A comparable sanction additionally settled the Incomparable
Courts of Madras and Bombay with closely resembling arrangements in 1801 and 1823
individually. Letters patent were given to all the three courts. These courts were supplanted by
the High Courts in 1862 under High Courts Act, 1861. The High Court's so-settled delighted in
all the forces, which were there with the Preeminent courts supplanted by these courts. In this
way the three administration High Courts acquired the ability to give writs as a replacement to
the Incomparable Court. Other High Courts in this way settled didn't have these forces since they
were recently made, and they couldn't acquire these forces as the administration High Courts did.
The exceptional power, which was given by the sanction on the three administration High
Courts, was not referenced in the letters patent of the ensuing courts. Be that as it may, the writ

2 Abhe Singh Yadav, “Law of Writs Jurisdiction and its Efficacy”, Universal law Publishing Company,(2009)

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purview of these courts was restricted to their unique common locale, which they appreciated
under segments 45 of the Particular Help Act, 1877.3

Writs Provisions under Different Statutes

The following statutes deal with writs provisions in India. These are as following:

The Code of Criminal Procedure, 1898:- The Code of Criminal Procedure (Cr PC) 1898
empowered the High Courts in the Presidency town to issue a writ of habeas corpus to set at
liberty a person held in illegal detention. 4 This jurisdiction was also limited to the original
jurisdiction of the High Court. The effect of this legislation was that it was no longer possible to
apply for the Common Law writ of habeas corpus.5 In 1923, the Cr PC amended to confer the
power to issue writs on all High Courts.6

The Specific Relief Act, 1877:- Section 45 of the Specific Relief Act, 1877 empowered the three
Presidency High Courts to make orders requiring any specific act to be done or forborne, within
the local limits of their ordinary civil jurisdiction, by any person holding a public office or by any
corporation or inferior Court. This Act deprived the High Court’s of the power to issue the
common Law writ of mandamus.7

The Code of Civil Procedure, 1908:- Section 115 of the Code of Civil Procedure 1908 provided
that a High Court might call for the record of an inferior Court and if there had been absence of
jurisdiction or failure to exercise jurisdiction or material irregularity in the exercise of
jurisdiction, it could make such orders as it thought fit. This was a provision similar to certiorari,
although it did not take away the power of the High Courts to issue a writ of certiorari. The writ
jurisdiction could not be taken away, except by express words. Thus, the provision for revisional
jurisdiction of the High Court has been retained in the CPC as amended in 1976 and the Cr PC
1973.8

3 Ibid.
4 Section 491, the Code of Criminal Procedure, 1898.
5 Girinder Nath v. Birendra Nath, AIR 1927 Cal 496; Mathen v. District Magistrate, AIR 1939 PC 213.
6 Section 30, The Criminal Law Amendment Act 1923 (XII of 1923).
7 Section 50, The Specific Relief Act 1877.
8 S.P.Sathe, Administrative Law, Lexis Nexis Butterworths Wadhwa, Nagpur (2006) 458-459.

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Writs Provisions under Indian Constitution:- The Constitution of India guarantees the
individual effective, inexpensive and speedy remedies against the administration. Under Articles
32 and 226, the Supreme Court and High Courts have power to issue prerogative writs in the
nature of habeas corpus, mandamus, prohibition, certiorari and quo warranto for the protection of
fundamental right enshrined in part III of the Indian Constitution. 9 Unless such Constitutional
remedies for its enforcement is not provided the rights guaranteed by part III of the constitution
cannot be ever implemented by the citizens. The main object of Articles 32 and 226 is to
maintain a balance between the competing interest of “personal liberty” and “public safety” as
reflected in the text of the Constitution and its subsequent interpretation.10

Types of writs

In India public law review is conducted through constitutional modes by way of issuing five
writs- habeas corpus, quo warranto, certiorari, prohibition and mandamus under Article 32 and
226.11

Habeas Corpus

Habeas Corpus is a prerogative writ which is a renowned contribution of the English

Common law to the protection of human liberty. 12 It was granted to a subject of His Majesty,
who was detained illegally in a jail. It is an order of release. The words ‘habeas corpus ad
subjiciendum’ literally mean that you have the body to answer. It means the writ of habeas
corpus is a process for securing the liberty of the subject by affording an effective means of
immediate release from unlawful or unjustifiable detention whether in person or in private
custody.13 It may be defined as a judicial order issued by the Supreme Court or a High Court by
which a person who is confined by any public or private agency may secure his release. The writ
in the form of an order calls upon the person in whose confinement the person is to let the court
know the legal justification for the detention, and in the absence of such justification to release
the person from his confinement.
9 Article 32(2) of the Indian Constitution.
10 Selvi v. State of Karnataka, AIR 2010 SC 1974.
11 Devinder Singh, Administrative Law, Allahabad Law Agency, Faridabad (Haryana), (2007) 218.
12 Gururaja Chari’s “Supreme Court Rules, Practice & Procedure”, Wadhwa & Company, Vol.1, First Edition
(2003), p. 196.
13 Aliya Shaim v. State, Srinagar L.J.,1999, p.311.

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 The fundamental object of the writ of habeas corpus is to immediate determination of the
right of the detenues as to his liberty and freedom 14 and to make them expeditious, to keep them
as free from technicalities as possible and to keep them as simple as possible. 15 The writ is of
highest constitutional importance being a remedy available to the lowliest subject against the
most powerful government. Its efficacy depends, to a large extent, on the operative part of law
under which the freedom of an individual has been curtailed. The writ has been described as a
great constitutional privilege or the first security of civil liberty 16 which aimed at to ensure swift
judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detenu.17

The writ of habeas corpus would lie against all wrongful deprivation of personal
liberty.18 It is available to the weakest against the mightiest with the only exception of prisoner of
war and the enemy alien.19 It is issued not only for release from detention by the State but also for
release from private detention. It may be issued against any person or authority who has illegal
detained, arrested or confined or prisoner. In such circumstances it is the duty of the police to
make necessary efforts to see that the detenu is got released but, if despite such efforts, if a
person is not found, the police cannot be put under undue pressure to do impossible. 20 The
remedy under habeas corpus lies against the three organs of the State legislature, executive and
judiciary, local authorities, other instrumentalities of the state, any administrative authority, and
private persons including company or any association of persons. The writ was also issued when
a ban was imposed on law student to conduct interviews with prisoners for affording them legal
relief.21

There is no hard and fast rule for making an application for a writ of habeas corpus under
Article 32 before the Supreme Court or under Article 226 before the High Court. An application
for habeas corpus can be made by any person on behalf of the prisoner as well as the prisoner

14 Ranjit v. Pepsu, AIR 1959 SC 843: 1959 Supp (2) SCR 727.
15 Ibid
16 Deepak Bajaj v. State of Maharashtra, AIR 2009SC 628; Vijay Kumar Karwa v. Official Liquidator, 2008 (3)
SCALE 311.
17 State of Maharashtra v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613, 624 (para 25).
18 C. Basavaraju, “The ‘Writ of Habeas Corpus’ as a Constitutional Remedy-An Analysis”, The Bangalore Law
Journal, Vol. 2 (2007-2009) 47.
19 Supra note 3 at 12.
20 Jayamma (Smt.) v. State of Karnataka. AIR 2009(NOC) 687 (kar) : 2009 (1) AIR Kar R 335 (DB).
21 Mohammad Ghouse, “Constitutional Law”, (1980) XVI ASIL 193-94.
23
Charanjit Lal v. Union of India, AIR 1951 SC 41.

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himself.23 The wife or the father of the detenue can bring a petition. 22 In view of the growth of
PIL, the rule of locus standi stands further relaxed. Habeas corpus is available even against
private persons,23 to the wife against the husband,24 or for the custody of minor children if they
are illegally detained.25

Mandamus

The writ of Mandamus is regarded as one of the highest remedies in the Indian judicial System
which literally means ‘command’. It is in the form of specific orders from the Supreme Court or
High Court to the inferior court, tribunal, a board, corporation or any administrative authority, or
a person requiring the performance of a specific duty fixed by law or associated with the office
occupied by the person.26

In the modern era the mandamus is also called a wakening call. It awakes the sleeping
authority to perform their duty. It demands an activity and sets the authority in action. 27 The
function of mandamus is to keep the public authorities within the limits of their jurisdiction while
exercising public functions. It can be issued to any kind of authority in respect of any type of
function-administrative, legislative, judicial and quasi-judicial.

The main object of mandamus is to prevent disorder from the failure of justice and is
required to be granted in all cases where law has established no specific remedy and whether
justice despite demanded has not been granted.28 It normally issues only when an officer or an
authority by compulsion of statute is required to perform a duty and which despite demand in
writing has not been performed. Under this writ, duties to be performed may be directory or
mandatory. If intended to be mandatory, the duties are indicated by use of the words “shall”,
“must” and if not compelling the word used is more often than not “may”. But, in all

22 Sundarajan v. India, AIR 1970 Del 29.

23 Dushyant Somal v. Sushma Somal, AIR 1981 SC 1026: (1981) 2 SCC 277.
24 Veena Kapur (Dr) v. Varinder Kumar, AIR 1982 SC 792.
25 Afzal v. Haryana (1994) 1 SCC 425; Elizabeth Dinshaw v. Arvand M Dinshaw (1987) 1 SCC 42:AIR 1987 SC 3;
Mohd Ikram Hussain v. Uttar Pradesh, AIR 1964 SC 1625.
26 Kabul Singh v. Niranjan Singh, AIR 1958 Punj 168.
27 Types of writs in the Constitution of India, 10 th March 2013, available on www.gktoday/types-of-writs-in-
theconstitution-of-india/. Visited on 3.5.13 at 12.40.pm.
28 Union of india v. S.B. Vohra, AIR 2004 SC 1402.

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circumstances, the character of duties must depend on interpretation of the relevant law or
statute.29

The writ of mandamus can be issued to the following:

(i) The three organs of the Government-legislature, executive and judiciary

(ii) Local authorities and instrumentalities of government. But it will not be issued
against the President or the Governor of a State for the exercise of powers and
performance of duties.30 It will not lie against the State legislature to prevent from
considering enacting a law alleged to be violative of Constitutional provisions. 31 It
will also not lie against an inferior or ministerial officer who is bound to obey the
orders of his Superior.32

Mandamus can be issued on all those grounds on which certiorari and prohibition can be issued.

It can be issued on the following grounds33:

(i) Error of jurisdiction- it includes excess of jurisdiction and lack of jurisdiction.

(ii) Jurisdictional facts

(iii) Violation of the principles of natural justice

(iv) Error of law apparent on the face of record

(v) Abuse of jurisdiction

Certiorari

Certiorari is an extraordinary common law remedy of ancient origin. It is not a writ of

right but one of discretion. It is a Latin word which means “to certify”. It is in a form of judicial
order issued to the lower judicial authority by the High Court or Supreme Court to show the
record of proceeding ‘pending with’ such lower judicial authority for scrutiny and if necessary

29 Mansukh Lal Vithal Das v. State of Gujarat, AIR 1997 SC 340.

30 Article 361, Constitution of India.
31 Narinder Chand v. Lt. Governor, Union Territory of H.P., AIR 1971 Sc 2399.
32 Halsbury’s Law of England, 2nd Edn, Vol. 9. p.763.
33 J.J.R. Upadhaya, Administrative Law, Central Law Publication (2001) 240.

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for quashing the same. The main object of a writ of certiorari is to bring up the records of an
inferior Court, an administrative tribunal or other administrative body discharging some quasi-
judicial function, for examination before the higher judiciary so that it may be certified by higher
judiciary that works and acts of the lower courts or tribunals does not exceed the limits of
jurisdiction fixed by law.

A writ of Certiorari lies against judicial or quasi judicial authorities but will not issue
against a civil court, though it can issue against a tribunal. 34 The jurisdiction of the High Court to
issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to
act as an appellate court. It means that finding of facts reached by the tribunals as a result of the
appreciation of evidence cannot be reopened or questioned in writ proceedings. In regard to a
finding of fact by a tribunal, a writ of certiorari can be issued if it is shown that in arriving at
such a finding, the tribunal had erroneously admitted inadmissible evidence, which had
influenced the impugned finding. Similarly if a finding of fact is based on no evidence that
would be regarded as an error of law which can be corrected by certiorari.35 The writ is not issued
against bodies like a court of inquiry entrusted with the work of merely carrying out the
investigation into a charge against an employees and submitting a report to an officer in the
Ministry of Defence, Government of India.36
Writ of Prohibition

Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’. 37
It is in the nature a preventive writ with a view to an injunct or prevents order against a Court or
tribunal. It literally means to prohibit the lower Court or tribunal. It is a command by the
Superior Court to inferior courts and tribunals to refrain from doing what it is about to do. It
prevents from assuming jurisdiction which is not vested in him. The term "inferior courts"
comprehends special tribunals, commissions, magistrates and officers who exercise judicial
powers, affecting the property or rights of the citizen and act in a summary way or in a new

34 RJ Fouzar Bus Service, Hoshangabad v. State, AIR 1994 MP 122.

35 Syed Yakoob v. Radhakrishnan, AIR 1964 SC 477, 479, per Gajendragadkar J.
36 A.K.Moittra v. Defence Ministry, AIR 1956 All 312.
37 Constitutional Remedy under Articles 32 and 226 of the Constitution of India, available on
www.lexvidhi.com/article-details/constitutional remedy-under-Article-32-and-226-of-the-constitution-of-India-
422html. visited on 13.8.15 at 1.59 pm.

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course different from the common law.38 In India, prohibition is issued to protect the individual
from arbitrary administrative actions.

Prohibition can be issued on the same grounds on which certiorari can be issued except in
one ground the error of law apparent on the face of the record. The grounds for the issue of
prohibition are as following39:

(i) Lack or excess of jurisdiction.

(ii) Violation of principles of natural justice.

(iii) Infringement of fundamental rights.

(iv) Fraud

(v) Contravention of the law of the land.

In Thirumala Tirupati Devasthanamas v. Thallappaka Anantha Charyulu,40 it was held

that a writ of Prohibition is normally issued when inferior court or tribunal

(i) proceeds to act without jurisdiction or in excess of jurisdiction

(ii) proceeds to act in violation of the rules of natural justice or

(iii) proceeds to act under a law which is itself ultra vires or unconstitutional,

(iv) proceeds to act in contravention of fundamental rights

Writ of Quo Warranto

The word quo warranto means what is your authority. It is a judicial order against a
person who occupies a substantive public office without any legal authority. In other words the
writ calls upon the holder of a public office to show to the court under what authority he is
holding the office in question.41 It is a very effective method of judicial control which reviews the
actions of the administrative authority which appointed the person. It gives the judiciary a

38 Arvind kumar, Short essay on the writ of prohibition, available on www.preservearticles.com/2011111216899/

Short-essay-on- the- writ- of –prohibition.html, visited on 13.8.15 at 11.42am
39 Asstt. Collector, Central Excise v. National Tabacco Co., (1972) 2 SCC 56: AIR 1972 SC 2563.
40 (2003) 8 SCC 134: AIR 2003 SC 3290, para 14.
41 B.R.Kapur v. State of T.N., (2001) 7 SCC 231: AIR 2001 SC 3435, para 79.

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weapon to control the executive, the legislature, statutory and non statutory bodies in matters of
appointments to public offices. Conversely, it protects a citizen from being deprived of a public
office to which he has a right.42

Any member of the public can seek the remedy of quo warranto even if he is not
personally aggrieved or interested in the matter. 45 He may be a stranger. In Satish Chander
Sharma v. University of Rajasthan,43 it was held that a registered graduate of a university could
challenge the election of a person to the syndicate though he was neither a voter for the election
nor a candidate. In the same manner a Citizen has a right to move the High Court for quo
warranto against a chief minister who is occupying the post unauthorized.44

The writ of quo warranto will not be issued if there is an alternative legal remedy
provided by the statute. Where the constitution or any statute provides that a specific question of
law is to be decided by a tribunal, the higher judiciary cannot assume jurisdiction to issue the quo
warranto. This writ does not lie for quashing the order for creation of the post before incumbent
was appointed.45

At the end it is concluded that under Article 32 of the Supreme Court the power to
issue prerogative writs in the nature of habeas corpus, mandamus, prohibition, certiorari and quo
warranto for the protection of fundamental right enshrined in part III of the Indian Constitution
have been given to the citizens to get the justice in time. This remedy also exists in the form of
Art.226 of the Constitution for filing a writ in the High Court concerned which does not prevent
or place any bar on an aggrieved person to directly approach the Supreme Court under Article 32
of the Constitution. In India for the protection of fundamental rights of citizens, the effective
Constitutional machinery is needed. The procedure for filing the writs should be clear, simple
and speedy so that people will able to get justice in time. Today, the Supreme Court, High
Courts and the ordinary courts are overburdened with appeals and litigations. To lessen their
burden, more and more administrative tribunals should be established as an alternative forum by
which the disputes or grievances of the peoples could be settled expeditiously and economically.

42 I.P.Massey, Administrative Law, Eastern Book Company, Lucknow (2008) 416.

45
G. Venkateswara Rao v. Govt. of A.P., AIR 1966 SC 828.
43 AIR 1970 Raj 184.
44 Purushottam Lal v. State, AIR 1979 Raj 18.
45 D.D.Sahu v. Jatinder k.Mishra, (1998) 7 SCC 273.

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Bibliography

1. I.P.Massey, Administrative Law,

2. www.lexvidhi.com/article-details/constitutionalremedy-under-Article-32-and-226-of-the-
constitution-ofIndia-422-html.
3. Halsbury’s Law of England, 2nd Edn, Vol. 9

4. J.J.R. Upadhaya, Administrative Law

5. Mohammad Ghouse, “Constitutional Law”,

6. Arvind kumar, Short essay on the writ of prohibition, available on

www.preservearticles.com/2011111216899/ Short-essay-on- the- writ- of –
prohibition.html,
7. Devinder Singh, Administrative Law

8. Gururaja Chari’s “Supreme Court Rules, Practice & Procedure”,

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9. Indian Law Institute, “Judicial Review through Writ Petition

10. David Stott & Alexandra Felix, “Principles of Administrative Law

11. Abhe Singh Yadav, “Law of Writs Jurisdiction and its Efficacy”,

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